Out of these two appeals one has been filed by accountable person, while other has been filed by department. We shall first deal with appeal filed by accountable person. name of deceased is Shri J. P. Joshi. He died on 24-11-1979. At time of his death, he was working as agent of Life Insurance Corporation of India Ltd. He was residing in flat with his wife and other members of his family. One of properties that passed on his death was self-occupied flat. registered valuer's report estimated value of said flat at Rs. 1,56,040. accountable person claimed that wife of deceased had 25 per cent share in that property by virtue of Shastric Hindu law as lawfully wedded wife. He relied on certain decisions of Supreme Court. claim of accountable person was not accepted. Assistant Controller estimated value at Rs. 1,56,040 and allowed deduction of Rs. 1 lakh under section 33(1) (n) of Estate Duty Act, 153 ('the Act') and included balance of Rs. 56,040 in value of property passing on death. valuation made by Assistant Controller was not accepted by accountable person. He filed appeal before Controller (Appeals), and raised several objections regarding value adopted by Assistant Controller. It was submitted that wife of deceased had right of maintenance which included right of residence in flat, and as such, that liability should be deducted. In alternative, be submitted that said liability amounted to encumbrance on property. All these contentions were rejected by Controller (Appeals). In memorandum of appeal filed before us, first ground raised was that provisions of rule 1BB of Wealth-tax Rules, 1957 ('the 1957 Rules'), should be applied in valuing said flat. contention on behalf of department is that assessee had never made any claim for valuation under rule 1BB before lower authorities and, as such, said claim could not be entertained at this stage. Reliance was placed on decision in Ugar Sugar Works Ltd. v. CIT [1983] 141 ITR 326 (Bom). 2. first point, therefore, that we have to consider is whether accountable person was entitled to raise plea before us to effect that provisions of rule 1BB should be applied for valuation of self-occupied flat. In decision in case of Ugar Sugar Works Ltd. (supra) on which department had relied, assessee had claimed development rebate on certain items but that claim was rejected by ITO. assessee had filed appeal to AAC against other findings of ITO. He did not challenge ITO's finding about rejection of claim for development rebate before AAC. claim for development rebate was, therefore, not subject-matter of appeal before AAC. ITO rejected other grounds raised in appeal. Against said rejection, assessee filed appeal before Tribunal and in t h t appeal, assessee sought to raise by additional ground, plea regarding development rebate. On these facts, it was held that grounds regarding development rebate could not be raised before Tribunal because that ground did not arise out of order of AAC. principle laid down in said decision would not apply here. question before Assistant Controller was as to at what figure said self-occupied flat should be valued for inclusion in value of property passing on death of deceased. assessee had challenged figure of Rs. 1,56,040 which Assistant Controller had intended to accept. assessee wanted that house should be valued at lower figure. He raised certain pleas in this regard. Before Controller (Appeals), he challenged valuation made by Assistant Controller. Thus, question of valuation of flat arose directly from order of Controller (Appeals). It is not case where value estimated by Assistant Controller had not been challenged before Controller (Appeals) and that value was being challenged only before Tribunal. This is case where value was being challenged at each stage. Mere fact that touching valuation rule 1BB should be applied was not raised before lower authorities would not disentitle accountable person to raise that plea before Tribunal particularly when question of valuation is under consideration before Tribunal. plea raised is legal plea touching valuation and when valuation is under challenge, plea of this nature can be taken before Tribunal even though it had not been taken before lower authorities. question of valuation in all its aspects has to be determined by Tribunal as final authority on fact and, as such, all legal pleas pertaining to valuation can be properly raised before Tribunal. We, therefore, reject preliminary objection of department to effect that assessee was not entitled to raise plea in question. 3. next question to be considered is whether valuation should be made in accordance with provisions of rule 1BB. Rules framed under Act do not contain any special provision for valuation of residential property. Such special provisions are contained only under Wealth-tax Act, 1957 ('the 1957 Act'). question of valuation of same house as on or about same date may arise simultaneously in proceedings under 1957 Act and 1953 Act. It would be wholly anomalous if same property is valued at different figures in two different proceedings. value of same property should be deemed to be same whether that value is subject-matter of consideration under 1957 Act or under 1953 Act. It is for this reason that in CED v. J. Krishna Murthy [1974] 96 ITR 87, Mysore High Court has held that for purposes of estate duty, shares of companies which are not quoted should be valued in accordance with provisions of rule ID of 1957 Rules. In other words, what has been held is that provisions of 1957 Rules should be made use of in valuation of property under 1953 Act. On same reasoning, provisions of rule 1BB should be applied for valuing said self-occupied flat in proceedings under 1953 Act. 4. view which we have taken is supported by decision of Bombay High Court in Jehangir Mahomedali Chagla v. M. V. Subramanian, Addl. First ACED [1985] 20 TAXMAN 4 (Bom). That case pertains to estate of late Justice M. C. Chagla, who had bequeathed his flat in favour of his son. At initial stage, accountable person did not value said flat under rule 1BB, however, at subsequent stage, he sought to value said flat under rule 1BB. Assistant Controller did not accept contention of accountable person. In writ petition filed harmonious construction demands that identical method should be employed for in determining value under section 36(1) of Act, even in cases where death has occurred prior to 1-3- 1981, on which date sub-section (3) was inserted in section 36 by Estate Duty (Amendment) Act, 1982, under said provision, valuation was required to be made in accordance with provisions of Wealth-tax Rules. It was further held that to accept claim that only method of valuation was land and building method would lead to anomalous results; flat would be valued for purpose of rule 1BB at one figure and if assessee died on next day, then accountable person would be required to pay duty on higher valuation for same flat. It was further held that method provided in rule 1BB was only possible method for determination of value of that flat of deceased under section 36 , in spite of fact that deceased had died prior to 1-3-1981. facts of present case are identical. We, therefore, follow principle laid down in said decision of Bombay High Court and direct Assistant Controller to make valuation in accordance with provisions of rule 1BB. 5. It was expressly submitted on behalf of accountable person before u s that if plea of assessee regarding rule 1BB was accepted his other objections about valuation should not be considered, and that they should be deemed to have been given up. We, accordingly, do not consider other objections regarding valuation. 6. next ground raised is that estate duty payable was admissible deduction. This plea must be rejected in view of decision in Smt. V. Pramila v. CED [1975] 99 ITR 221 (Kar). We, accordingly, reject said ground. 7. We now come to appeal filed by department. deceased had taken ten policies on lives of his minor son and daughter. total premia payable was Rs. 5,394,50 per annum. premium for two years amounted to Rs. 10,789. According to Assistant Controller, premium paid during last two years of death of deceased amounted to gift to those children. He relied on section 9(1) read with section 27 of Act and added amount of Rs. 10,789. Controller (Appeals) held that contract was between LIC and deceased and as such, amount had been paid to LIC. Consequently, there was no gift to minor children and as such provisions of section 9 were not applicable. He, accordingly, directed deletion of said amount. 8. In this connection, accountable person relied on provisions of section 9(2) (b). That provision laid down that provisions of sub-section (1) of section 9 shall not apply to gifts which are proved to satisfaction of Controller to have been part of normal expenditure of deceased, subject to maximum of Rs. 10,000 in value. deceased was admittedly maintaining children. In normal course of such maintenance, it was quite natural for him to take out policies on their life. In these circumstances, premia paid should be deemed to be payments made as part of normal expenditure of deceased. Consequently, only Rs. 789 out of Rs. 10,789 was liable to be added. It was stated on behalf of accountable person before us that he had no objection on addition of Rs. 789. We, accordingly, modify order of Controller (Appeals) and hold that amount of Rs. 789 alone is liable to be added in respect of premia aid on life of children. In view of above submission, on behalf of accountable person, we do not deem it proper to go into broad question whether premia paid within two years of death, in circumstances of present case, amount to gift to minor children under section 9(1). We leave that question open. 9. next point to be decided is whether amount representing 'renewal commission' was liable to be included in value of property passing on death. deceased was working as agent in LIC. He received commission in respect of policies secured through his agency. commission payable by LIC to deceased was certain percentage of premium received by LIC. Each policy usually ran for several years. Consequently, premium on each policy was payable periodically either annually or half yearly or quarterly. assessee was entitled to commission on all subsequent payments of premiums on particular policy. This commission has been termed as 'renewal commission'. After death of assessee, said commission is being received by assessee's heirs. Assistant controller was of opinion that renewal commission which deceased was to receive in subsequent years constitute property passing on death. He sought information from LIC about renewal commission. LIC gave following certificate: "Certified that value as on 24-11-1979, date of death of Shri Jayantilal P. Joshi of future renewal commission payable on policies, particulars relating policy number, name of life assured, date of commencement of policy, table and term of assurance, sum assured, annual premium and rate of renewal commission whereby are given in attached statement, is estimated to be Rs. 63,257.35 (Rupees sixty-three thousand two statement, is estimated to be Rs. 63,257.35 (Rupees sixty-three thousand two hundred fifty-seven and paise thirty-five only)". Assistant Controller, on basis of certificate, added Rs. 63,257.35 in value of property passing on death. In appeal filed by accountable person, Controller (Appeals) observed that future commission had no element of certainty and that it represented only contingent interest that cannot pass on death. He, therefore, deleted said amount. department has challenged said deletion. 10. learned representative for accountable person has brought to our notice fact that under usual agreement of agency, it is specifically stipulated that every agent would advise every policy holder in respect of policy and would endeavour to ensure that every installment of premium was remitted by policy holder to Corporation and that he would also endeavour to prevent lapsing of policy or its conversion into paid up policy. Failure to discharge these functions would result in termination of agency. In these circumstances, according to learned representative for accountable person, amount of renewal commission could not be termed as 'property passing on death'. We specifically asked learned representative for accountable person whether agent would be entitled to receive renewal commission on policies effected through his agency, even if agency was subsequently terminated. It was pointed out to us that payment of renewal commission by policy depended solely on payment of instalments of premium by particular policy holders and that fact that a gent himself did not make any endeavour subsequently would not disentitle agent to receive renewal premium. accountable person was in fact receiving renewal premium from LIC. In these circumstances, it cannot be gainsaid that deceased had no beneficial interest in renewal commission receivable on policies effected by him during his lifetime. That beneficial interest would constitute property passing on his death. 11. next question to be decided is as to what amount should be included under this head. It is actuarial value as on date of death in respect of said renewal commission, which would constitute property passing on death. Such actuarial valuation would take into account future contingencies about lapsing of certain policies. parties were not in position to state before us whether figure of Rs. 63,257.35 mentioned in certificate of LIC represented actuarial valuation or not. If it did not represent actuarial valuation, assessee would be entitled to obtain such valuation and submit for inclusion. We, therefore, set aside order of Controller (Appeals) on this point and restore matter to Assistant Controller with direction to give opportunity to accountable person to produce such material as he considers necessary on this point and include value of beneficial interest in renewal commission as on date of death of deceased. 12. In result, both appeals are partly allowed. *** M.J. JOSHI v. ASSISTANT CONTROLLER OF ESTATE DUTY